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Why is The Bizarre Cathedral licence "non-free"?

For the past 26 weeks I've been producing the Bizarre Cathedral strips for Free Software Magazine. Every one of them is released under a Creative Commons Attribution-Non-commerical-Share Alike (BY-NC-SA) licence. Recently I've received a few pieces of mail saying this is a "non-free" licence and questioning my use of it here. Some of them are quite polite, others have demanded I change the licence immediately (presumably "or else"). I'm not going to change the license, and here's why.

The four freedoms apply to software not art

The four freedoms cannot apply to creative works -- particularly something like a strip cartoon. There is no source code for users to study and modify. Copyleft can apply to artwork though and the Creative Commons licences are the most common form of copyleft licence for artwork. The FSF (whom most of my correspondents seem to refer to in their arguments) states that Creative Commons licences are incompatible with the GNU GPL or GNU FDL.

Every single person who has written to me about my choice of licence takes issue with the non-commercial (NC) part. Apparently it is "non-free" of me to tell user they may not sell my works. What I don't get is how the share-alike and attribution clauses are somehow more free. When, in 2004, the -- at the time ubiquitous -- Xfree86 X-Window (GUI) server project added a new clause to their licence stating that an attribution comment in the code could not be removed, the free software community went into action. Outrage was a popular term I seem to recall. The (free) Xorg project forked the code and became the server of choice. So why is an attribution clause free in artwork but not in software?

While we're at it, isn't the share-alike clause restricting freedom too? Shouldn't people be given the freedom to distribute the Bizarre Cathedral under any licence they want? There are those who claim that the GNU GPL is non-free because the copyleft aspect restricts users' freedom to distribute the software. The same can be applied to the CC licences.

In the end the pursuit of absolute freedom in a licence will lead to one conclusion: no licence or public domain. "Do whatever you want with it" is the message of works in the public domain.

Why I use this "non-free" licence

Having said that, there's a good case that you have to restrict some freedom in order to protect greater freedom for everyone. This is why we imprison murderers - their freedom is restricted in order to give more people the freedom to live and not be murdered (that's the theory anyway). Copyleft takes the same angle -- by restricting some freedom in distribution, it protects greater freedoms for the end-users. This is why I chose CC-BY-NC-SA for the Bizarre Cathedral.

BY because I want people who receive one cartoon to be able to enjoy the rest here at FSM.

SA because I want everyone to enjoy the same access to the strips

NC because I want people to enjoy these at no cost. I am paid for creating them, so I want them to be enjoyed at no cost.

To clarify the NC point further, I actually have no real problem with people charging for my work, but in the past I have discovered that others were taking my work and grossly over-charging for them. This reduced the size of the audience and the impact of the work. Never again.

The CC licences permit any of the restrictions I place on my work to be waived in writing by me. So if you want to sell the works or a derivative, you can contact me and we'll discuss it. As I said I don't object to people charging form my work, I simply ask that they get my express permission first.

Some of my correspondents have been a little confused by the bandying around of this "non-free" term in relation t the NC clause. So in summary here is what you can do with the Bizarre Cathedral strips:

I value freedom a great deal: I write free software, I write for Free Software Magazine and I promote freedom in non-software walks of life. I disagree that the NC clause alone makes this licence "non-free". I'll settle for "less free" but I hold that of itself it isn't really any less free than the BY or SA clauses nor of copyleft. Is the GPL "non-free" because it can't be linked to a non-copyleft library or is it just less free than the LGPL?

Finally, just so we are clear I shall continue to licence the Bizarre Cathedral as CC-BY-NC-SA for the foreseeable future.

Comments

I don't want to seem like another person "demanding" you change your license. In my opinion, your choice of license is your own to make. This is fundamental, and I'm sorry you've had people trying to push you around.

However, I do feel that this rationale doesn't support your choice. In my opinion, I think that By-SA would serve your stated intent much better.

In particular, you say you are afraid of scalpers:

To clarify the NC point further, I actually have no real problem with people charging for my work, but in the past I have discovered that others were taking my work and grossly over-charging for them. This reduced the size of the audience and the impact of the work. Never again.

To clarify your experience here: what license were you using when this was happening? Are you really telling us that you released stuff under a By-SA license, you had people scalping it, and this had a negative impact on the free distribution of your work? (All three would have to be true to support your rationale for using NC).

I find that very hard to believe, so if it's true, I would be very interested in it as a test case! It certainly would violate my understanding of the economics.

Under an SA license, the scalper's business model should be untenable unless they can somehow retain effective monopoly control over access to the work. If the work is available for free and people know this, then they're unlikely to pay the scalper (and if they are still willing, there must be a good reason, such as "convenience", "packaging", or a desire to support the scalper -- they might be fund-raising for a good cause, for instance).

Using an SA license (or for that matter, a By license) is one way of insisting that people do know: the scalper is legally required to post the author's attribution and licensing information. (Yes, I know that some people will violate the license, but NO license can protect you from that). With the CC "By" clause, in particular, you can insist on publishing the URL of original publication, if it contains verification of licensing and attribution (which the FSM page for Bizarre Cathedral does).

It's a common misunderstanding to think that NC just prevents people from charging for copies of your work, but it's actually much more far-reaching than that!

As a simple example, people can't legally put a copy of your comic on their homepage if they also have Google Ad Sense ads to offset their hosting costs (the definition of NC says nothing about making a profit -- it's about making revenue, even if you are operating at a loss).

Another common example, is that a company can't use the comics on any site owned by them, regardless of whether it is connected to their profit-making activities or not (IOW, NC discriminates against the user, not just the use. I hesitate to even raise the point of what this means if you are self-employed).

These interpretations are based on the Creative Commons' own draft guidelines on what constitutes "commercial use". In fact, though, the issue of what constitutes "non-commercial" is so poorly defined that CC has (literally -- this is not a joke) commissioned a study, with support from the Andrew W. Mellon foundation, in order to figure out what it means!

NC has exactly one economically rational use case: you want to retain commercial rights in the work so you can sell them.

In practice, SA probably achieves this too, since most publishers will want to pay for the right to re-license exclusive derivatives of your work as a value-add. Otherwise, it's hard to justify the expense of a print run (they have to worry about scalpers too). But NC is the safest way to do this, I'll admit.

But if you're satisfied with the commission from FSM for Bizarre Cathedral, and you want the work to be freely available, then NC doesn't make much sense, IMHO.

Thanks for your comment. To clarify something, the previous work was not released under a CC licence at all. CC did not exist then. It had a custom freeware licence which permitted a "reasonable" distribution charge to recover media and postage. This was in he very early days of the Web so most distribution was still done by CD.

My concern was and is more to do with the maximum number of people having access to the work at zero cost. Your examples of uses excluded by NC are good but you miss the point that you quoted. If somebody wants to put my cartoon on a site with Google Ads they just have to ask. If a company wants to put it on any of their websites - they just have to ask.

The reasons you gave supporting the use of SA are pretty much why I include it in the licence for tBC.

You said..

NC has exactly one economically rational use case: you want to retain commercial rights in the work so you can sell them.

I'd agree with one amendment ...

NC has exactly one economically rational use case: you want to retain commercial rights in the work so only you or those you permit can sell them.

If I never wanted others to sell the works I would be using a standard copyright licence. As it is I am open to consider it but I reserve the right to decide in each case. That sums up why I include the NC. I am unlikely to sell copies of these toons but I might. I'll say this here for clarity: If anyone wants to include them on an otherwise non-profit site which has Google-Ads or similar then get in touch. You will probably find that I will allow it - I just want to know about it first.

My choice of licence is also connected to the reason for the work. In this case it's entertainment (I hope) and not education or instruction. If it were the latter I would probably not include the NC.

This is often quoted as a defense for NC, but it's basically spurious.

First, it's always true, no matter what license you use (or indeed if you post no license at all). So, in that sense, it's a trivial argument that applies to any license, no matter how restrictive.

Second, though some people argue that choosing a CC license is a "signal" to let people know you are "open" to "free-licensing"; in my experience, using an NC license usually means artists are only "open" to "NC-licensing" and that's it!

Third, the real point about free-licenses is precisely that you don't have to ask (or even find) the author. This eliminates a fundamental friction and doubt in the creative process. So, resorting to this argument sort of misses the whole point of free content in the first place. Instead of encouraging people to "just go ahead and do it" it makes them think (e.g.) "gosh I could just be wasting my time, because this artist can just silence me by claiming I'm using their work commercially -- so maybe I won't bother". IOW, having to ask for permission chills creative expression.

So, IMHO, we've drawn the line in the right place: there is a very real sense in which your comic is "non-free".

Which is fine with me. I have no problem with you not using a free license. It is sort of amusingly ironic that a cartoon about free software isn't free content, but it doesn't really mean there's anything wrong with it. The difference between utilitarian and aesthetic work is also a real distinction.

There is always a balancing act between Intellectual Freedom and Intellectual Property. That's the nature of the beast. We aren't "free" to use content that doesn't exist, after all! So if we need some restrictions to make it exist, then we have to live with that.

To those who don't believe it is needed? Fine. Make your own comic! Problem solved. That's what it means to have a "free market of ideas".

There's lots of non-free documentation (e.g. books) sold to support free software, and writing and selling such a book is one of several ways that a free software author can get paid for their work without having to restrict the software. Free documentation has a greater utility value because it is free, but it has to be balanced against the quality, which is usually a function of how much labor went into it, and that can in turn depend on IP-based income to make it possible. It's a trade-off, and which strategy wins depends on too many factors to make some kind of sweeping generalization about which is better.

Getting paid for free creative artwork and writing is much harder than getting paid for free software, and it's no surprise that a lot of artists are more resistant to the idea.

It's also true that for many purposes, "NC" work is "free enough" for content: I certainly don't restrict my reading, listening, or viewing time to free-licensed works (though I do give them some preference by seeking them out).

Terry makes some good points, particularly about the fogginess around the word "non-commercial". I release creative works (music and writing) under CC licenses, and I tend to vacillate between using NC and not. The copyleft aspect of the SA clause seems enough to protect a work against blatant exploitation, but it's understandable why we sometimes gravitate to the idea of NC.

When I release a work CC, I want people to have the work to enjoy. I'm not out to make money off of it, but if someone else is going to profit from my work I'd certainly like a cut. I think there is a certain fundamental fairness to that. Granted, things get a bit complicated when you try to nail down specifics, but on a larger scale I think this point of view is perfectly natural.

Think about throwing a potluck for your friends. Nobody is required to bring food, and certainly there's no hard limit on how much food a person is allowed to take. But if you had a guest who brought no food, swiped half the hot dogs off the grill, and started selling them to passers-by on the street, I think you'd rightfully be upset. Or if the guy who brought the ketchup decides to charge 25 cents a squirt while helping himself to the hamburgers, buns, and potato salad everyone else provided for free -- I think you'd rightfully be upset.

The problem is, of course, that these are vague feelings and ideas, and when translating them into a set of legal limits you are going to end up either creating a loophole for someone to exploit you, or restricting people beyond what you intended or desire.

The problem is, of course, that these are vague feelings and ideas, and when translating them into a set of legal limits you are going to end up either creating a loophole for someone to exploit you, or restricting people beyond what you intended or desire.

That's certainly true but the nice part of CC is that I can waive any of those restrictions at my discretion. So it's a kind of deny-all default policy with additional specific allow policies.

I think you are slightly confused in your discussion of the Xfree86 licensing problem. The problem with the Xfree86 licensing wasn't that it was in any way considered non-free, but simply that it was incompatible with the GPL2 in a way that would cause numerous practical problems. Nobody has ever claimed that attribution clauses aren't acceptable in free software and I believe that the GPL v3 even has a option to include such a clause.

On the other hand, although most people would have no objection to your using a the Creative Commons non-commercial license for your work, the non-commercial clause violates the Open Source Definition and most definitions of Free software. Although there are many aspects of the GPL that are specific to software, not restricting distribution or sale is rather fundamental, and so it is not clear at all that artwork should be considered differently. Additionally, with a non-commercial license your strip can't be distributed with a linux distribution or other Free software, since it impose such a restriction.

Again, there is nothing wrong with you using such a license, it simply means that your artwork is does not meet the definition of Free that is required of Free Software.

I think you are slightly confused in your discussion of the Xfree86 licensing problem. The problem with the Xfree86 licensing wasn't that it was in any way considered non-free, but simply that it was incompatible with the GPL2...

Yes the XFree86 licence is really non-copyleft than non-free (and is described as such by FSF). My point was really that software and artwork are not the same as is recognised by the reduced fuss made over the CC-BY clause.

On the other hand, although most people would have no objection to your using a the Creative Commons non-commercial license for your work, the non-commercial clause violates the Open Source Definition and most definitions of Free software.

And as my cartoons are not software and have no source code I have no problem with this. This is the real matter - the complaints I get are generally from free software advocates trying to apply the same rules to artwork.

Although there are many aspects of the GPL that are specific to software, not restricting distribution or sale is rather fundamental, and so it is not clear at all that artwork should be considered differently.

The GPL is a software licence and only that. This is why such things as the GFDL exist. My cartoons are not documentation either so that one doesn't apply either.

Additionally, with a non-commercial license your strip can't be distributed with a linux distribution or other Free software, since it impose such a restriction.

Any person, company, organisation, project that wishes to redistribute one of these cartoons in a way which may breach the NC clause, they have only to ask.

Again, there is nothing wrong with you using such a license, it simply means that your artwork is does not meet the definition of Free that is required of Free Software.

Yes the XFree86 licence is really non-copyleft than non-free (and is described as such by FSF).

The XFree86 license is neither non-copyleft nor non-free. It is simply incompatible with the GPL which is just one open-source / Free license. There is no ethical problem with it, it would simply mean that a lot of gpl software could not interface with it properly. This practical problem aside it is a perfectly legitimate open-source / Free software license.

Any person, company, organisation, project that wishes to redistribute one of these cartoons in a way which may breach the NC clause, they have only to ask.

That's not enough unless on request you give them permission to allow people to sell copies. As long as you make this restriction, it can't be distributed with a package of open-source / Free software since the entire package could then not be sold and would therefore not be open-source / Free.

The GPL is a software licence and only that. This is why such things as the GFDL exist. My cartoons are not documentation either so that one doesn’t apply either.

The GPL and the GFDL both do not restrict sale or redistribution because this is a fundamental component of Free / open-source. The Creative Commons license without the NC part would be a perfectly reasonable extension of this idea for artwork, but otherwise your license is simply not open-source / Free.

I have no problem with your choice of license but when you say, "What I don’t get is how the share-alike and attribution clauses are somehow more free," the answer is simply that this is the definition of Free in the sense of Free Software. Your claims about the XFree86 issue don't change this in any way.

Any person, company, organisation, project that wishes to redistribute one of these cartoons in a way which may breach the NC clause, they have only to ask.

That's not enough unless on request you give them permission to allow people to sell copies. As long as you make this restriction, it can't be distributed with a package of open-source / Free software since the entire package could then not be sold and would therefore not be open-source / Free.

Firstly I sincerely doubt these strips would make a useful contribution to a free software package. If I honestly thought they would be I would have chosen a different licence. These images are meant for entertainment and any redistribution is likely to be for the same reason. You and others using the same argument as yourself appear to have made an assumption that I release all my artwork under NC type licences. I don't. I have created various images, icons etc. for use in websites and other media under licences with varying degrees of liberation. The NC is there for these particular strips because it suits my purposes in this instance.

Open-source would be a misleading term to use in any software package that included these strips as there is no source-code for these images. Any change made to them would have to be on top of the original - a derivative. Bitmap images just cannot be treated in the the same way as software.

The Creative Commons license without the NC part would be a perfectly reasonable extension of this idea for artwork, but otherwise your license is simply not open-source / Free.

The purpose of the artwork is an important factor in choosing a licence. With software I believe it's important that the user can use the software for any purpose they choose. With artwork the purpose is largely built into the image. If the image is a diagram explaining how to perform a task then the purpose is educational. If the image is a photo of a a picturesque landscape the purpose leans more towards the aesthetic. If the image is a strip cartoon with (I hope) humourous message then the purpose is going towards entertainment. In the first case it would be harder to argue for an NC than in the latter two cases.

I release all my code under GPL 2 or 3. I upload my presentations as PDF slides under CC-BY-NC-SA.

If you use my code and are selling it in some way then you are probably adding value to it and you are entitled to the money you get as long as you stick to the GPL.

It's hard to add value to a slide (or cartoon) in the same manner, so I don't mind you using my slides but you can't make money from them, you have to give it away for free - I am restricting their use. If you want to use them and make money then send me an email and we'll discuss the matter. So yes I'm giving my work away with less freedoms but I agree with the point here that people shouldn't make money from my work when the end user can get the same work from else where for free.

My view which may be naive, is that if you take my stuff and add extra value then you are entitled to get money for your work - which includes mine. If you take my work and just sell it without adding money then that's not allowed.

I believe the most commonly shared reasoning for BY-SA instead of BY-NC-SA is in response to aggregation projects and end users who simply decide that BY-NC-SA is grounds for automatic exclusion... usually due to one of the following:

1. They decide the additional cognitive and/or administrative overhead (amateur vs. pro, usually) of tracking and managing a library of resources which includes some NonComm-licenses just isn't worth the benefit. (Loss: You, since this type of user can usually easily find competitors who offer BY-SA or equivalent and all that's lost is your opportunity for free promotion)

2. They're producing an aggregate (eg. DVD) for either fundraising or offline educational purposes (typically in places like Africa where reliable internet is a luxury at best) and, for legal reasons, they consider classifying their work as non-commercial to be difficult and getting individual permission to impose far too much overhead. (Loss: You. Again, plenty of competitors with more liberal licenses who will be happy to get the free promotion said aggregate represents.)

The second-most common reasoning I've seen is a variation on the one that the Creative Commons licenses were created to mitigate... the orphan works problem.

I admit I may be biased, given that I run an archive of fanfiction that would potentially have been lost even with original U.S. copyright terms. (Stories whose authors dropped off the web, taking their sites with them... all in less than 15 years and most in less than 10)

I could be wrong, but as I understand it, supposing SlideShare went under or, like MP3.com, was bought out sans catalog, any other site which wanted to archive BY-NC-SA presentations could be in danger of lawsuits if they both displayed advertising and didn't request author permission.

I admit that CC licenses significantly limit the problem by granting non-commercial redistribution rights as a non-optional component. However, the point remains that people are, in general, overly optimistic about their ability and desire to remain reachable to grant additional permissions in the long-term.

Given the ridiculous lengths to which copyright terms have been extended, the likelihood that it will happen again, and the behaviors I've observed with cases of license violation of various kinds, I've come to the conclusion that, on the whole, licensing your work with an NC license is only useful for things like MIT OpenCourseware where there is otherwise a danger of your honest competitors taking advantage of your generosity.

For things posted legitimately on sites like SlideShare, a BY-NC-SA license is likely to have the following effects:

1. The majority of end users won't care, as the non-commercial term doesn't affect them. The bigger issue with them is all your other competitors (under varying licenses) who are also clamoring for attention.

2. People looking to aggregate may or may not search elsewhere, depending on the kind of aggregation (primarily blog vs. other) and the intended purpose.

3. People looking to make money, especially in places like China, will likely ignore your license, operating under the assumption that the license doesn't matter since they'll never get caught and you're not a lawyered-up multi-national anyway. (This isn't just limited to GPL code. It also happens frequently with educational materials like slides where someone will scrape the web, scrub the license and author contact information, and trick people into paying for it)

4. In the long term, the freer flow of content among and between projects in the BY-SA sphere like Wikibooks and other Wikimedia projects will favor non-NC information, pushing NC-licensed content further out of the spotlight... potentially resulting in it having dropped off the web in 95 years (or Life+90 years or whenever it finally enters the public domain), granting others whatever small measure of immortality bibliographic citations and archived changelogs may offer.

This is not true!
There IS no source code for users to study and modify!

I assume that's a typo and you meant the opposite but yes you are correct there are image formats that contain "source-code" and I am happy to accept the distinction.

The Bizarre Cathedral strips are in a bitmap format though and thus do not have source code for users to study. If I were producing diagrams, drawings and even educational cartoons I would probably opt for one of those formats. This presumes the distribution method I chose supported such formats.

but yes you are correct there are image formats that contain “source-code” and I am happy to accept the distinction.

This is a very interesting pragmatic issue for free multimedia projects. It's one thing to have a free bitmap image or a free audio recording, but it's much more useful to have a vector graphic or an audio sequencer project file and samples or MIDI and instrument patches.

These kinds of formats encourage cooperative development, and can be modified and adapted by people less skilled than the people who originally created them!

However, even in cases where there is "source code" for art and music, it's often ambiguous which particular set of files constitutes the "source code". For example, if you created an image in Adobe Illustrator for my project, I don't actually want your .AI files, I want the .SVG files converted from them.

The GPL and other free licenses refer to "the preferred form for making modifications to the work", but they don't tell you WHO prefers it: the original artist, the latest artist to work on the project, some vague concept of consensus? (Truthfully, this can be a problem for software too, but the consensus is usually stronger).

Myself, I would prefer for the metric here to be the use of open standards, so that it doesn't matter which particular authoring applications you use.

However, it's also true that "open standards" is only a vaguely-defined term, so it would be very hard to pin it down to an exact legal meaning (about the best you could do is refer to an approved list, and that would wind up being an unnecessary bottle-neck for many projects).

Because this is such a minefield, the Creative Commons decision to stand off from the issue and not make source code requirements is a practical one. They've converted this to a simple requirement that distributions not intentionally impede derivation through "technical protection measures" or "digital rights management".

There’s lots of non-free documentation (e.g. books) sold to support free software, and writing and selling such a book is one of several ways that a free software author can get paid for their work without having to restrict the software. Free documentation has a greater utility value because it is free, but it has to be balanced against the quality, which is usually a function of how much labor went into it, and that can in turn depend on IP-based income to make it possible. It’s a trade-off, and which strategy wins depends on too many factors to make some kind of sweeping generalization about which is better.

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Biography

Ryan Cartwright heads up Equitas IT Solutions who offer fair, quality and free software based solutions to the voluntary and community (non-profit) and SME sectors in the UK. He is a long-term free software user, developer and advocate. You can find him on Twitter and Identi.ca.